The Constitutional Court (TC) has supported that those who carry out economic activities and refuse to provide certain accounting information to the Treasury in the framework of a tax inspection can be fined up to 600,000 euros, considering that, despite the “severity” of the sanction, there is no “patent and excessive imbalance” with the purpose of the norm.
The Plenary has decided by a large majority to dismiss the question of unconstitutionality raised by the Second Section of the Contentious-Administrative Chamber of the Supreme Court regarding article 203.6 b) 1 of the General Tax Law (LGT), which was modified in 2012 to intensify both prevention and the fight against fraud, as reported by the court of guarantees.
The questioned article establishes that the “tax violation due to resistance, obstruction, excuse or refusal to the actions of the tax administration” committed by a subject who carries out economic activities and who is the subject of an inspection procedure will be punished with a fine. of the 2% of the turnover corresponding to the last financial year ended at the moment, "with a minimum of 20,000 and a maximum of 600,000 euros."
The provision details that this sanction is applicable exclusively to obstructive conduct related to "the provision or examination of accounting books, tax records, files, programs, operating and control systems" or consisting of failure to comply with the duty to "facilitate the entry or permanence in properties and premises” or “recognition of elements or facilities”.
The Supreme Court stated that this rule could be incompatible with the principle of proportionality of sanctions, “due to both the excessively distressing nature of the sanction and its exhaustive fixation in the law itself,” according to the TC statement. Therefore, he did not question the constitutionality of the offending type in itself, he notes.
The ruling concludes that said article does not violate the principle of proportionality of sanctions because it leaves certain margin to the sanctioning body to adapt the fine depending on the conduct of the offending subject.
“In principle, it is not possible to deduce from article 25.1 of the Spanish Constitution (principle of legality) a requirement that the legislator reserve in all cases margins for grading the sanction to the bodies in charge of applying administrative sanctions, whether it be the administration itself or the contentious-administrative judge who reviews his actions,” the ruling indicates.
To this he adds that the aforementioned precept "takes sufficient account, in its own legal configuration, of the circumstances that the legislator, in a way that cannot be described as unreasonable or arbitrary, has considered relevant for the quantification of the sanction", such as the seriousness of the conduct, how the infraction is committed and “its significance for the correct verification of tax obligations.”
In this sense, the ruling highlights the fact that the sanction is applicable only to cases in which the information not provided by the offender to the tax inspection refers to business accounting in a broad sense, not to specific accounting information or data, that are typified in other precepts with a lower penalty.
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